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Phillips Esq.
Phillips Esq., Attorney-at-Law
Category: Family Law
Satisfied Customers: 19653
Experience:  B.A.; M.B.A.; J.D.
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I am in the middle of a divorce. I borrowed less than 1/2 my

Customer Question

I am in the middle of a nasty divorce. I borrowed less than 1/2 my 401k to buy a new home. My husband will not sign a marital waiver for me to sign, even though I am the sole borrowers.
JA: Are there any minor children from the relationship? What is the custody situation?
Customer: 2 minor children. Joint Physical and Legal. GAL involved. He moved out of state and the GAL has not allowed him to have visitation
JA: Family law varies by state. What state are you in?
Customer: Kansas
JA: Anything else you want the lawyer to know before I connect you?
Customer: We have temp. orders in place. He suffers from mental illness un-diagnosed.
Submitted: 2 months ago.
Category: Family Law
Customer: replied 2 months ago.
I would also like it to be known that we have 2 rental properties out of state, and 1 marital residence in the state of Kansas. When I asked him to sign the marital waiver he said, NO, I am going to take your new house in the divorce as well.
Customer: replied 2 months ago.
I borrowed from my 401k to put the downpayment down and be transparent in the process. So it would be clear where I took the funds from. Is he right, can he take my new home?
Expert:  Phillips Esq. replied 2 months ago.

Hello: This isCustomer Welcome to JustAnswer! I am reviewing your post, and I will post my response very shortly. Thank you for your patience.

Expert:  Phillips Esq. replied 2 months ago.

I am sorry to read about your difficulties.

When did you accumulate the funds in the 401k, before or during the marriage?

Thank you for your cooperation.

Customer: replied 2 months ago.
During the marriage. I contributed for 12 years, was married for 11. So most during marriage.
Expert:  Phillips Esq. replied 2 months ago.

Thank for the information.

Unfortunately, that would be considered marital property and thus subject to division during your divorce. However and more importantly, since Kansas is NOT a community property State, your husband may not get any part of the property after the Court has reviewed various factors including but not limited to contribution of the parties to the acquisition of the property. See Kansas Statutes Chapter 23 Article 28 Section 23-2802.

Best wishes,

Customer: replied 2 months ago.
the fact that I cannot afford the large home we are in, and I needed to keep my son, with special needs, in the same school. And the fact that I borrowed less than 1/2 of my 401k for transparency ... you think that will help?
Expert:  Phillips Esq. replied 2 months ago.

Yes, that would help.